Vol. 17

April 2007

In this issue:

Former DOJ officials comment on Attorney Firing Controversy

News from the Courthouse — ADR Update
Attempt to Invalidate a Mediated Settlement Agreement Fails
By Pat Siuta

Henning Neutral Profile
An Atypical Journey to the Law

Henning and Our Neutrals in the News

Former DOJ Officials Comment on Attorney Firing Controversy

Attorneys around the country are closely following the controversy over the dismissal of eight U.S. attorneys by the Justice Department. For those who’ve been sleeping under a rock for the last month, the initial reason given by the administration for the firings of eight Republican U.S. attorneys was poor performance. However, the attorneys charged the firings were not performance-based but political. Either they pursued investigations of Republicans, refused to go public prematurely about investigations of Democrats prior to the 2006 election or were making way for political protégés of the White House. Documents uncovered thus far appear to support the fired attorneys’ claims. New information is revealed almost daily as the congressional investigation proceeds.

Historically, different presidents have addressed the politicization of the U.S. attorney role in different ways. In today’s highly polarized context, the controversy pits recent history, tradition and the current political environment against each other. It’s resulting in the unusual situation in which the firing of eight Republicans by their Republican colleagues is being challenged by a Democratic Congress.

Although wholesale personnel changes are traditional at the beginning of a new administration, a mid-term change is highly unusual. The politicization controversy is reminiscent of the furor over President Richard Nixon’s requesting then-Attorney General Elliot Richardson to fire Archibald Cox, the special prosecutor investigating the Watergate scandal. Richardson refused and resigned.

One factor that may have contributed to the firings is that under a provision of the Patriot Act, the president can now appoint U.S. attorneys for an indefinite period without congressional approval. Prior to the Patriot Act, they could only be appointed for a period of 120 days without gaining congressional confirmation. This provision provided a scenario in which the administration could make large-scale changes in the makeup of the U.S. attorney population without going through Congress.

The firing issue is of particular interest to those who have served in the Justice Department. These attorneys offer a unique perspective on the various currents and eddies of this ongoing news story.

Jack Williams, now with Powell Goldstein LLP, was an Assistant United States Attorney for the Northern District of Georgia from 1995 to 2000.

“The Attorney General and the United States Attorneys positions are patronage jobs but, once in Office, you're obligated, or at least you should be, to do justice.  You're not an agent of the party or elected official who put you in office.  The Attorney General and the Justice Department traditionally do not interfere a great deal with United States Attorneys' execution of their jobs in their respective jurisdictions. 

The scandal appears to be as much about the cover-up or "miscommunication" as it is about the firings themselves.  It appears that the Administration told Congress that the firings were performance-based and that does not appear to be the truth." 

Former U.S. Attorney General Griffin Bell, as reported in the Fulton County Daily Report, says historically when the presidency changed hands, there were mass firings or resignations at Justice. He noted that U.S. attorneys serve at the pleasure of the president and political appointees were often removed wholesale at the change of an administration. Once in office, however, U.S. attorneys and their deputies were expected to run their offices as the constitutional institution that they are, i.e., with justice for all. Many presidents, including President Jimmy Carter, under whom Bell served, went to great lengths to de-politicize the Justice Department. According to Bell, Carter encouraged him to retain many capable Republican prosecutors when he took office. Bell, now a Republican, was quoted by the Fulton County Daily Report as saying ‘You have to think about the department as an institution. You don’t want politics in the Justice Department. If ordinary people think the Justice Department is politicized then they will lose faith in the system.”
Stay tuned….

Attempt to Invalidate Mediated Settlement Agreement Fails

Although the vast majority of mediated settlement agreements successfully resolve the dispute between parties, occasionally a party who has entered into such an agreement will try to back out of the agreement.  A typical tactic used by parties trying to invalidate a mediated settlement agreement is to claim duress, claiming that their attorney and the mediator forced them into the agreement. To enhance the chances that a mediated agreement will hold up to any subsequent challenge, it is important that the attorneys representing the parties and the mediator take the time to make sure that the parties fully understand the agreement and are entering into the agreement voluntarily. 

In a recent case, a party to a mediated agreement tried to invalidate the agreement he entered into, claiming duress. The civil litigation that was the subject of the mediation included claims of forgery and embezzlement in connection with various real estate transactions. After a two-day mediation, the parties entered into a mediated settlement agreement. Subsequently, one party claimed that the mediation agreement should be invalidated for duress based upon the following:  he was in poor health during mediation; the mediator told him that if he continued the litigation he would need to pay additional fees to his attorney; the mediator failed to advise him that he could terminate the mediation; and during the mediation there had been discussion about the other party potentially filing criminal charges against him if the civil litigation did not settle. The court found that the claims of wrongful threats did not "ring true," and the other evidence did not support a finding of coercion. While the court found no duress in this case, it did state that had such threats of criminal prosecution actually been uttered, they could support a finding of duress.  Paciorkowski v. Minichiello, (N.J. Sup. Ct. App. Div., No. A-4628-04T5, Feb. 20, 2007)

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Henning Neutral Profile - Corliss Lawson

An Atypical Journey to the Law

Few attorneys have taken the unusual path of Henning neutral Corliss Scroggins Lawson in pursuing a career in the law.

She obtained her bachelor’s degree cum laude from Washburn University in Topeka in computer Information Sciences and worked for the Kansas State Department of Social Rehabilitation Services as a computer operator and computer programmer for 9 years. Lawson and her family then moved to Memphis where she achieved her law degree with honors from Vanderbilt University School of Law.

Asked if her computer programming background has influenced her career as a lawyer, she responds, “Definitely.

“The programming of a machine involves using decision trees – ‘If, then’ logic. This methodology has served me well in the law. I use decision trees all the time in complex litigation and alternative dispute resolution."

Lawson considers mediation practically a hobby. Something she does because she enjoys it so much. “Because I was married young, I was determined to hit the ground running out of law school. My career really got on a fast track,” she says.

Indeed it did. Recruited out of law school by Lord, Bissell & Brook LLP as an Associate Attorney, Lawson was named Partner-in-charge of Lord, Bissell & Brook’s Atlanta office 12 years later. She was the first African-American female to head the office of a national law firm. When hired, she was only the second African-American female in the 400+ attorney firm’s 90-year history.

“Of course, I’m not your typical “suit” attorney,” laughs Lawson. Which brings up her second “hobby” – jewelry. No, she doesn’t make it, she wears it. A lot of it. It’s her trademark. “Colleagues who see me without a lot of jewelry assume I must be deathly ill,” she chuckles. “I’m known for my ‘Wonder Woman’ belts and jewelry that are very flashy, very large and unique.” Her eclectic tastes cover costume jewelry as well as the real thing. “If you’re going to rob me, take your best shot because you could be getting something or nothing,” Lawson notes. “Shopping is my hobby and in my third career, I’d like to own a boutique. Jewelry is my passion.”

Except, of course, for her family. Her 27-year-old son, Tony, just got out of the United States Air Force and works as a civilian contractor at Keesler Air Force base in Biloxi, Mississippi. Her daughter, Courtney, 23, and the mother of her only grandchild, Jalen, 2, works at a daycare center. Lawson also cared for two foster children, one of whom is now deceased. She raised her other foster child, Aliene, from 8th grade through high school graduation.

It was because of her children that Lawson recently changed career directions again, although ever so slightly. “My ex-husband and children’s father, to whom I was married for 16 years, died suddenly. It rocked my children’s world. I decided I needed to be more available for them. As a result, she resigned from Lord, Bissell & Brook in 2006 and started her own law firm, Corliss & Associates, P.C., in Fayetteville while continuing to do ADR. “It was the right decision,” she adds.

So if you’re in the Justice Center in Fayetteville and spot a woman with serious jewelry and a belt the size of Wonder Woman’s, you’ll know you’ve run into Lawson.

For more information on Corliss Lawson, go to www.henningmediation.com.

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Henning and Our Neutrals in the News

Terrence Lee Croft will use his experience settling more than 2,000 mediation cases as a panelist on a “Winning in Mediation” session at an ICLE seminar presented by the State Bar of Georgia on May 3, 2007.

Bill Goodman was a panelist at the General Practice & Trial Section Institute of the State Bar of Georgia on” Mediating a Road Wreck Case” at Amelia Island on Saturday March 17, 2007. Goodman was a recent recipient of the Tradition of Excellence Award from the State Bar’s General Practice & Trial Section.

Tom Tobin will be a panelist on mediation at the annual meeting of the Georgia Society for Healthcare Risk Management at Saint Simon’s Island King & Prince Hotel, May 16 – 18, 2007.

Rex Smith spoke at an ICLE Brain Damages Cases seminar on March 30, 2007 at the Marriott Gwinnett Place Hotel in Duluth, Georgia. His topic was "Mediation of the Traumatic Brain Injury Case”.

Smith will also speak at an ICLE Jury Trial seminar on May 11, 2007 at the State Bar of Georgia Conference Center in Atlanta.

Last semester, The Hon. Dorothy Beasley studied at Central European University in Budapest with attorneys from around the world, completing the first half of the requirements for what she hopes will be a Master’s Degree in International Law. The Central European University program is a joint program with Emory University School of Law where she will take the remainder of her classes.

March 22-24, 2007 Judge Beasley participated in the Conference on World Law & World Health, organized by the World Law Institute of Emory Law School. She was asked to introduce speakers Judge Navanethem Pillay of the International Criminal Court and formerly a judge for 8 years on the International Criminal Tribunal for Rwanda, and Mary Robinson, former President of Ireland, who also served as the United Nations High Commissioner for Human Rights.
 

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